November 1, 2005

Here's a free link to get to Akiba Covitz's TNR piece saying why Alito is not the same as Scalia. The article mostly contrasts the personalities of the two men -- and goes quite far in painting Scalia as an unpleasant person. It picks out a single case to portray Alito as less than "a caustic conservative":

In the 2003 case Williams v. Price, ... Alito wrote the majority opinion overturning a lower court decision in which a convicted first-degree murderer was not permitted to call into question his verdict after a juror was heard making racist comments. This was a grisly murder and just the kind of annoying habeas petition that those of Scalia's ilk think clog the judicial system. To his credit, Alito authored the opinion that provided for a new hearing.

In fairness, we could also pull out a few Scalia opinions that would resonate for liberals. Really, even Scalia is not the caricature that is used in these contrasts. But the challenge should be to understand Alito. Must Scalia distract us? The strongest reason for continuing to talk about Scalia is that the President campaigned on the promise that he would nominate persons like Scalia and Thomas. So why aren't we talking about Thomas too? Because Thomas isn't Italian?

I don't know why most people are not talking about Thomas, but I think the media is not talking about him because they have always tried to portray him as a watered-down version of Scalia with no mind of his own. The meme is basically that since Thomas doesn't think like other black men (ie is not a liberal) he must be taking his cues from Scalia. This despite the fact that the two men have distinct judicial philosophies and have frequently disagreed. Eugene Volokh discussed this here.

The truth is that any justice on the Supreme Court that didn't make the Democrat's short list deserves ridicule, scorn, hyperbole, and talk of The Last Days. The mockery depends on their gender, race, and ethnicity. You know, the usual stereotypes liberals avoid, except when they don't.

Compromise and reasoned discussion are permissible only after the revolution, man.

"Memorable" doesn't necessarily mean good. I mean, O'Connor's opinion in that death case where there were substantial claims of innocence that begins "This is a case about federalism." is certainly memorable as well, though not for positive reasons.

The more you read Alito's stuff, the less apt the Scalia comparison seems; he is, however, a fulfilment of the promise to appoint a Scalia/Thomas type, his opinions seeming very much closer than Thomas' than Scalia's.

Sadly, I think that when Our Hero leaves the court, we will not see his like again. On the bright side, I think we still have a good ten to fifteen years of Scalia to enjoy.